On June 15, 2020, the Supreme Court ruled 6-3 in Bostock v. Clayton County that protections for discrimination on the basis of “sex” in Title VII of the Civil Rights Act of 1964 also extends to sexual orientation and gender identity. Justice Neil Gorsuch authored the opinion, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion joined by Justice Thomas. Justice Kavanaugh authored a separate dissent.
What was the Court’s reasoning in Bostock v. Clayton County?
I read the majority opinion and both dissents. (You can find them here.) Everyone agreed that the original wording of “sex” in the Civil Rights Act of 1964 referred to one’s biological sex. So what was the Court’s reasoning in including sexual orientation and gender identity in the word sex? The majority opinion relied on one key point: that discriminating on the basis of sexual orientation and gender identity necessarily discriminates on the basis of sex (Opinion of the Court, pp.9-12). Therefore, they are protected under Title VII of the Civil Rights Act of 1964.
They use two examples to demonstrate their point. For sexual orientation, they use an example of an employer with two employees, one a gay man, the other a straight female. They are both attracted to men and indistinguishable in all regards except for their sex. If the employer fires the gay man because he is attracted to men while not firing the female though she is attracted to men as well, then it necessarily involves a discrimination based on sex. For a transgender employee, a similar example is given with two employees. One was born male but now identifies as female; the other was born female and still identifies as female. If the employer discriminates against the first employee who now identifies as female, then the discrimination was necessarily made on the basis of sex.
So, by intimately tying sexual orientation and gender identity to “sex,” the Supreme Court reasoned that discrimination on the basis of sexual orientation and gender identity are unlawful under Title VII. Without this point, their entire argument falls apart.
Was the Court’s reasoning correct in Bostock v. Clayton County?
To be fair, the majority opinion gives a compelling legal argument.
- The Court admits “that homosexuality and transgender status are distinct concepts from sex.” (p.19) Yet, an intrinsic connection exists between sexual orientation, gender identity, and “sex” to such an extent that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” (p.9)
- Previous Supreme Court decisions have invoked Title VII to protect other characteristics intrinsically connected to sex but would be conceptually distinct from “sex” in the strictest sense.
- Therefore, sexual orientation and gender identity should be included in Title VII protections of “sex.”
However, the reasoning should be recognized for what it is: clever, yet faulty. It appears to be very compelling, but it fails in several regards.
First, while it is true that sex, sexual orientation, and gender identity are connected on conceptual and linguistic levels, this is not the same thing as the ability to discriminate or differentiate on the basis of sexual orientation or gender identity without invoking sex. Alito, in his dissent, demonstrates this by giving a counterexample to the hypotheticals given in the majority’s opinion (Alito, pp.16-17). Suppose instead of having 2 employees, an employer has 4 employees consisting of a gay man, a lesbian, a straight man, and a straight woman. If the employer were to fire the gay man and lesbian, it is entirely possible to discriminate on the basis of sexual orientation without discriminating on the basis of sex as it was understood in the Civil Rights Act of 1964. A similar example could be given for transgender individuals.
This is further demonstrated when we look at legislation and court rulings at both the state and federal level over the past 50 years, which Kavanaugh outlines in detail (Kavanaugh, pp.15-21). They have consistently distinguished sexual orientation and gender identity from biological sex. For the past several years, Democrats in Congress has tried to pass the Equality Act, which would have amended the Civil Rights Act of 1964 to include sexual orientation and gender identity, the very thing which the Supreme Court has now done through judicial activism. If it were so obvious that sexual orientation and gender identity were included in sex, then there would have been no reason to create legislation to do just that.
Second, statutory law must be interpreted by the courts in accordance with the “ordinary” meaning of the words used (what a word would have meant to the people of the time a law was written). Otherwise, they would risk reading things into laws that weren’t really there at the time of their passage, usurping the legislative branch and hindering their ability to interpret laws properly. Although this is a finer legal point I can’t really comment on too much (not being a lawyer), the point is that the word “sex” in 1964 did not even have the slightest hint of incorporating sexual orientation and gender identity, as Alito and Kavanaugh thoroughly show in their dissents. Therefore, these things should not be read into the law now.
Even in the wording of the bill itself, the phrase “because of sex” is defined in section 701k. “The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions…” Nothing in there would even remotely suggest sexual orientation or gender identity. It was clearly meant to protect women from discrimination on the basis of their sex.
Third, it demonstrates a fundamental misunderstanding about sexual orientation and gender identity. The ruling seems to presuppose our culture’s conception of sexual orientation and gender identity as ontological categories of humanity (i.e. what is part of the human essence) rather than a correct view that orientation and gender identity are things which you feel, think, and do, but are not things which you are. As Christopher Yuan likes to say, they describe how you are, not who you are. This distinction should give us pause as to whether we should deem such things as protected classes.
Fourthly (and a bit ironically), the Supreme Court, in order to include transgenderism under the claim of “sex” discrimination, would have to treat them in accordance with their biological sex rather than their gender identity. So in essence, they are fundamentally denying what transgenderism stands for while affirming the reality of biological sex. This just demonstrates the level of inconsistency in trying to redefine the word sex to include these things.
Potential Implications of Bostock v. Clayton County
This ruling will likely trigger future conflicts, particularly around religious liberty concerns. Now that sexual orientation and gender identity are protected classes, will a religious employer or institution be allowed to discriminate who they hire? This remains to be seen.
Justice Alito also outlines several other areas of concern that a redefinition of “sex” will affect, including bathrooms, locker rooms, women’s sports, housing, healthcare, freedom of speech, etc. Protections gained for women over the last 50-60 years are especially at risk.
However, more than anything else, this ruling further confuses an already confused culture on sexuality. It reinforces the distorted notion that sexual orientation and gender identity as ontological realities of the human person, elevating it to the same status as biological sex.
Conclusion
Alito was correct in calling this ruling “legislation” (Alito, p.1). Through a cleverly crafted argument, they usurped the legislature’s role, only to set up future conflicts in which the nation will once again look to them to resolve.